1
13,500,000 Shares
CENTRAL AND SOUTH WEST CORPORATION
COMMON STOCK
($3.50 Par Value)
UNDERWRITING AGREEMENT
February 21, 1996
Central and South West Corporation
0000 Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Dear Sirs:
We (the "Managers") understand that Central and South West
Corporation, a Delaware corporation (the "Company"), proposes to issue and sell
13,500,000 shares of its Common Stock, par value $3.50 per share (the "Firm
Shares").
It is understood that, subject to the conditions hereinafter
stated, 11,850,000 Firm Shares (the "U.S. Firm Shares") will be sold to the
several U.S. Underwriters named in Schedule I hereto (the "U.S. Underwriters")
in connection with the offering and sale of such U.S. Firm Shares in the United
States and Canada to United States and Canadian Persons (as such terms are
defined in the Agreement Between U.S. and International Underwriters of even
date herewith), and 1,650,000 Firm Shares (the "International Firm Shares")
will be sold to the several International Underwriters named in Schedule II
hereto (the "International Underwriters") in connection with the offering and
sale of such International Firm Shares outside the United States and Canada to
persons other than United States and Canadian Persons. Xxxxxx Xxxxxxx & Co.
Incorporated, CS First Boston Corporation, Xxxx Xxxxxx Xxxxxxxx Inc., Xxxxxxx,
Xxxxx & Co. and Xxxxx Xxxxxx Inc. shall act as representatives (the "U.S.
Representatives") of the U.S. Underwriters. Xxxxxx Xxxxxxx & Co. International
Limited, CS First Boston Limited, Xxxx Xxxxxx
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International Ltd., Xxxxxxx Xxxxx International and Xxxxx Xxxxxx Inc. shall act
as representatives (the "International Representatives") of the several
International Underwriters. The U.S. Underwriters and the International
Underwriters are hereinafter collectively referred to as "Underwriters".
The Company also proposes to issue and sell not more than an
additional 2,025,000 shares of its Common Stock, par value $3.50 per share (the
"Additional Shares"), solely for the purpose of covering over-allotments, if
and to the extent that the U.S. Representatives shall have determined to
exercise, on behalf of the U.S. Underwriters, the right to purchase such shares
of Common Stock granted to the U.S. Underwriters as provided in Section 2 of
the attached Underwriting Agreement. The Firm Shares and the Additional Shares
are hereinafter collectively referred to as the "Offered Securities".
Subject to the terms and conditions set forth or incorporated
by reference herein, the Company hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the respective number of Firm
Shares set forth opposite their names in Schedules I and II hereto at the
purchase price of $25.625 a share (the "Purchase Price"). If any Additional
Shares are to be purchased, the Company agrees to sell, and each U.S.
Underwriter agrees to purchase at the Purchase Price, severally and not
jointly, the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as the U.S. Representatives may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased as the number of U.S. Firm Shares set forth in Schedule I hereto
opposite the name of such U.S. Underwriter bears to the total number of U.S.
Firm Shares.
The Underwriters will pay for the Firm Shares at the offices
of Milbank, Tweed, Xxxxxx & XxXxxx, 0 Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000 at 9:00 a.m., New York Time, on February 27, 1996 or at such other place
and time, not later than March 5, 1996, as shall be mutually agreed. The
Firm Shares shall be concurrently delivered to the offices of The Depository
Trust Company, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, with a copy to be
delivered to the Underwriters at the offices of Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
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Payment for any Additional Shares shall be made in accordance
with Section 2 of the Underwriting Agreement.
The Offered Securities shall have the following terms:
Initial Per Share
Offering Price: $ 26.375 per share
-------------- -------
Underwriting Commission: $ .75 per share
------------------------- -------
Address for Notices
to Managers under
Underwriting Agreement: Xxxxxx Xxxxxxx & Co.
---------------------- Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Equity Syndicate
------------------
Payment Method: Wire transfer of immediately
-------------- available Federal funds
The Company has been advised by us that the Offered Securities are to be
offered to certain dealers selected by the Managers at a price that represents
a concession not in excess of $ .45 a share under the Initial Per Share
Offering Price, and any Underwriter may allow, and such dealers may reallow, a
concession not in excess of $ .10 a share, to an Underwriter or certain other
dealers.
All the provisions contained in the document entitled Central
and South West Corporation Underwriting Agreement Standard Provisions (Common
Stock-Shelf), dated February 21, 1996, attached hereto, are herein incorporated
by reference in their entirety and shall be deemed to be a part of this
Underwriting Agreement to the same extent as if such provisions had been set
forth in full herein. References herein and therein to numbered sections of
the Underwriting Agreement shall mean the numbered sections of the Standard
Provisions.
Please confirm your agreement by having an authorized officer
sign a copy of this Underwriting Agreement in the space set forth below and
returning the signed copy to us. This
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Underwriting Agreement may be signed in any number of counterparts with the
same effect as if the signature thereto and hereto were upon the same
instrument. It is understood that our acceptance of this agreement on behalf
of each of the Underwriters is or will be pursuant to the authority set forth
in a form of Agreement Among Underwriters and an Agreement Among International
Underwriters, the forms of which shall be submitted to the Company for
examination upon request.
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Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
CS FIRST BOSTON CORPORATION
XXXX XXXXXX XXXXXXXX INC.
XXXXXXX, XXXXX & CO.
XXXXX XXXXXX INC.
(Acting severally on behalf of
themselves and the several U.S.
Underwriters named in Schedule I
hereto)
By Xxxxxx Xxxxxxx & Co. Incorporated
By /s/ XXXXXXX X. XXXXXXX
---------------------------------
Title Vice President
------------------------------
XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
CS FIRST BOSTON LIMITED
XXXX XXXXXX INTERNATIONAL LTD.
XXXXXXX XXXXX INTERNATIONAL
XXXXX XXXXXX INC.
(Acting severally on behalf of
themselves and the several
International Underwriters named in
Schedule II hereto)
By XXXXXX XXXXXXX & CO.
INTERNATIONAL LIMITED
By /s/ XXXXXXX X. XXXXXXX
---------------------------------
Title Vice President
------------------------------
Accepted:
CENTRAL AND SOUTH WEST CORPORATION
By /s/ XXXXXXX X. XxXXXXXXX
---------------------------------
Title Treasurer
------------------------------
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Schedule I
U.S. Underwriters
Number of
U.S. Firm Shares
Name To Be Purchased
---- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated 1,639,000
CS First Boston Corporation 1,639,000
Xxxx Xxxxxx Xxxxxxxx Inc. 1,639,000
Xxxxxxx Xxxxx & Co. 1,639,000
Xxxxx Xxxxxx Inc. 1,639,000
Advest, Inc. 85,000
Xxxxxx X. Xxxxx & Co. Incorporated 85,000
X.X. Xxxx & Company 85,000
Bear, Xxxxxxx & Co. Inc. 170,000
Xxxxxx, Read & Co. Inc. 170,000
Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation 170,000
Duff & Xxxxxx Securities Co. 85,000
X.X. Xxxxxxx & Sons, Inc. 170,000
EVEREN Securities, Inc. 85,000
Xxxxxxxxxx & Co. Inc. 85,000
Xxxxxx Xxxx LLC 85,000
Xxxxxx & Company 85,000
J.J.B. Xxxxxxxx, X.X. Xxxxx, Inc. 85,000
Xxxxxx Xxxxxxxxxx Xxxxx Inc. 85,000
Xxxxxx X. Xxxxx & Co., L.P. 85,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 85,000
Xxxxxx Brothers Inc. 170,000
XxXxxxxx & Company Securities, Inc. 85,000
Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated 170,000
X.X. Xxxxxx Securities Inc. 170,000
Xxxxxxxxxxx & Co., Inc. 170,000
PaineWebber Incorporated 170,000
Principal Financial Securities, Inc. 85,000
Prudential Securities Incorporated 170,000
Xxxxxxxx Xxxxxx Refsnes, Inc. 85,000
Xxxxxxx, Xxxxx & Associates, Inc. 85,000
The Xxxxxxxx-Xxxxxxxx Company, Inc. 85,000
Salomon Brothers Inc 170,000
Xxxxx & Xxxxxxxxxxxx, Inc. 85,000
Xxxxxx Xxxxxxx Incorporated 85,000
Xxx Xxxxxx & Company 85,000
Wheat, First Securities, Inc. 85,000
----------
Total U.S. Firm Shares 11,850,000
==========
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Schedule II
International Underwriters
Number of
International
Firm Shares
Name To Be Purchased
---- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Limited 280,000
CS First Boston Limited 280,000
Xxxx Xxxxxx International Ltd. 280,000
Xxxxxxx Xxxxx International 280,000
Xxxxx Xxxxxx Inc. 280,000
Swiss Bank Corporation 125,000
UBS Limited 125,000
---------
Total International Firm Shares 1,650,000
=========
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CENTRAL AND SOUTH WEST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (COMMON STOCK-SHELF)
Dated February 21, 1996
From time to time Central and South West Corporation, a
Delaware corporation (the "Company"), may enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement and any such
underwriting agreement, including the provisions incorporated therein by
reference, is herein referred to as the "Underwriting Agreement".
The Company proposes to issue and sell to the underwriters
named in Schedule I to the Underwriting Agreement (the "U.S. Underwriters") the
number of shares (the "U.S. Firm Shares") of Common Stock, par value $3.50 per
share, of the Company as specified in Schedule I. The Company proposes to
issue and sell to the underwriters named in Schedule II to the Underwriting
Agreement (the "International Underwriters") the number of shares (the
"International Firm Shares") of Common Stock par value $3.50 per share, of the
Company as specified in Schedule II. The U.S. Firm Shares and the
International Firm Shares together being the "Firm Shares". In addition,
solely for the purpose of covering over-allotments, the Company proposes to
grant to the U.S. Underwriters the option to purchase from the Company up to an
additional number of shares of Common Stock, $3.50 par value per share, as
specified in the Underwriting Agreement (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively referred to as
the "Offered Securities". The Offered Securities will have the terms and
rights set forth in the Underwriting Agreement and Prospectus (as hereinafter
defined). The Underwriting Agreement shall be in the form of an executed
writing (which may be in counterparts) and may be evidenced by an exchange by
facsimile or any other rapid transmission device designed to produce a written
record of communications transmitted.
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1. Representations and Warranties of the Company.
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on Form S-3
(File No. 333-00343) and a Registration Statement on Form S-3 (Registration No.
333-01115), including a prospectus, relating to the Offered Securities, and the
offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), and such
registration statements have become effective. The Company has prepared or
will promptly prepare for filing with, or transmission for filing to, the
Commission, pursuant to Rule 424 under the Securities Act, a Prospectus
Supplement (the "U.S. Supplement") for the purpose of supplying information in
respect of the public offering of the Offered Securities, the names of the
underwriter or group of underwriters and other matters. In addition to the
U.S. Supplement, the Company has prepared or will promptly prepare for filing
with, or transmission for filing to, the Commission, pursuant to Rule 424 under
the Securities Act, an international Prospectus Supplement (the "International
Supplement") to be used in connection with the offering and sale of Offered
Securities outside the United States and Canada to persons other than United
States and Canada Persons. The U.S. Supplement and the International
Supplement are identical except for the outside front cover page. Said
registration statements, as amended at the time each became effective, and the
prospectus, as supplemented by the U.S. Supplement or the International
Supplement, as the case may be, relating to the Offered Securities in final
form as filed with the Commission pursuant to Rule 424 under the Securities
Act, are hereinafter called the "Registration Statements" and the "Prospectus",
respectively. The term "Basic Prospectus" means the prospectus included in the
Registration Statements. The term "preliminary prospectus" means a preliminary
prospectus supplement, if any, relating to the Offered Securities together with
the Basic Prospectus. Whenever the word "Registration Statements",
"registration statements", "Prospectus", "preliminary prospectus" or
"prospectus" is used herein it shall be deemed to include all documents
incorporated therein by reference pursuant to the requirements of Form S-3
under the Securities Act (the "Incorporated Documents").
(b) No stop order suspending the effectiveness of either
of the Registration Statements is in effect, and no proceedings for such
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purpose are pending before or, to the knowledge of the Company, threatened by
the Commission.
(c) The Commission has entered an order under the Public
Utility Holding Company Act of 1935, as amended (the "1935 Act"), permitting to
become effective the Form U-1 Application-Declaration filed by the Company
authorizing the issue and sale of the Offered Securities. A copy of such order
heretofore entered by the Commission has been or will be delivered to the
Underwriters.
(d) Except as otherwise contemplated herein, no approval,
authorization, consent, certificate or order of or qualification with any U.S.
governmental body or agency is necessary for the performance of the obligations
of the Company under the Underwriting Agreement with respect to the issuance or
the sale of the Offered Securities by the Company, except such as may be
required by the securities or Blue Sky laws of the various states in connection
with the offer and sale of the Offered Securities.
(e) The Basic Prospectus filed as a part of the
registration statements relating to the Offered Securities as originally filed,
or as a part of any amendment thereto, any preliminary prospectus at the time
of its issuance, and the Registration Statements and the Prospectus and any
amendment or supplement to the Registration Statements or the Prospectus as of
their effective or issue dates, and as of the Closing Date (as hereinafter
defined), complied or will comply, in each case in all material respects, with
the provisions of the Securities Act, and the rules and regulations of the
Commission under said Act, and neither of the Registration Statements nor any
amendment thereto contains or will contain an untrue statement of a material
fact or omits or will omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not misleading and
the Basic Prospectus, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto does not include and will not include an untrue
statement of a material fact and does not omit and will not omit to state a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances under which they were made not
misleading; provided that the foregoing representations and warranties in this
subsection (e) shall not
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apply to statements in or omissions from the Prospectus made in reliance upon
and in conformity with information furnished in writing to the Company by any
of the Underwriters for use in connection with the preparation of the
Registration Statements or the Prospectus.
(f) Since the respective dates as of which information is
given in each of the Registration Statements and in the Prospectus, there has
been no (A) material adverse change in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, or (B) adverse development concerning the business or assets
of the Company and its subsidiaries, taken as a whole, which would result in a
material adverse change in the prospective financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, except such
changes as are set forth or contemplated in such Registration Statements or the
Prospectus (including the financial statements and notes thereto included or
incorporated by reference in the Registration Statements).
(g) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State of
Delaware, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(h) Each of Central Power and Light Company ("CPL"),
Public Service Company of Oklahoma ("PSO"), Southwestern Electric Power Company
("SWEPCO"), West Texas Utilities Company ("WTU"), Transok, Inc. ("Transok")
(collectively, the "Operating Companies"), CSW Energy, Inc., CSW Credit, Inc.,
CSW International, Inc., CSW Communications, Inc. and Central and South West
Services, Inc. has been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its incorporation, has
the corporate power and authority to own its property and to conduct its
business as
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described in the Prospectus and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
(i) At or prior to the acceptance by the Company of a
proposal for the purchase of the Offered Securities, the Company will have
taken all corporate action necessary to be taken by it to authorize the
acceptance of such proposal and, at or before the Closing Date, will have taken
all corporate action necessary to be taken by it to authorize the performance
by it of all obligations on its part to be performed under the Underwriting
Agreement; and the execution and delivery by the Company of, and the
consummation of the transactions contemplated in, and the fulfillment of the
terms of, the Underwriting Agreement will not result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture or other
material agreement or instrument to which the Company or any of the Operating
Companies is a party at the Closing Date, or the Second Restated Certificate of
Incorporation, as amended (the "Charter") or by-laws of the Company, or result
in a violation of applicable law (provided that no representation is expressed
with respect to Section 5 of this Agreement insofar as public policy
considerations may affect the performance thereof) or any judgment, decree,
order or, to the knowledge of the Company, any rule or regulation applicable to
the Company of any court or of any state or Federal regulatory body or
administrative agency having jurisdiction over the Company or any of the
Operating Companies or over their respective properties.
(j) The authorized capital stock of the Company conforms
in all material respects as to legal matters to the description thereof
contained in the Prospectus.
(k) The shares of Common Stock outstanding prior to the
issuance of the Offered Securities have been duly authorized and are validly
issued, fully paid and non-assessable.
(l) The Offered Securities have been duly authorized and,
when issued and delivered in accordance with the terms of
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the Underwriting Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Offered Securities will not be subject
to any preemptive or similar rights.
(m) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(n) There are no legal or governmental proceedings
pending or, to the knowledge of the Company, threatened to which the Company or
any of the Operating Companies is a party or to which any of the properties of
the Company or any of the Operating Companies is subject that are required to
be described in the Registration Statements or the Prospectus and are not so
described; and there are no contracts or other documents that are required to
be described in the Registration Statements or the Prospectus or to be filed as
exhibits to the Registration Statements that are not described or filed as
required.
(o) There are no contracts, agreements or understandings
between the Company and any person granting such person the right to require
the Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to include
such securities with the Offered Securities registered pursuant to the
Registration Statements.
(p) The Company and the Operating Companies (i) are in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits, licenses
or other approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in compliance with all terms
and conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries, taken as a
whole.
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(q) Xxxxxx Xxxxxxxx LLP are independent accountants with
respect to the Company as required by the Securities Act and the applicable
rules and regulations thereunder.
(r) KPMG, Chartered Accountants, Registered Auditors, are
independent accountants with respect to the Company and to SEEBOARD plc as
required by the Securities Act and the applicable rules and regulations
thereunder.
2. Purchase, Sale and Delivery of Offered Securities.
The Company is advised by the Managers that the Underwriters
propose to make a public offering of their respective portions of the Offered
Securities as soon after the Underwriting Agreement is entered into as in the
Managers' judgment is advisable. The terms of the public offering of the
Offered Securities are or will be set forth in the Prospectus.
Each U.S. Underwriter hereby makes to and with the Company the
representations and agreements of such U.S. Underwriter contained in the fifth
and sixth paragraphs of Article III of the Agreement Between U.S. and
International Underwriters of even date herewith. Each International
Underwriter hereby makes to and with the Company the representations and
agreements of such International Underwriter contained in the seventh, eighth,
ninth and tenth paragraphs of Article III of such Agreement.
The Company hereby grants to the several U.S. Underwriters the
option to purchase, and upon the basis of the warranties and representations
and the other terms and conditions herein set forth, the U.S. Underwriters
shall have the right to purchase, severally and not jointly, from the Company,
ratably in accordance with Firm Shares to be purchased by each of them, all or
a portion of any Additional Shares, as provided in the Underwriting Agreement,
as may be necessary to cover over-allotments made in connection with the
offering of the U.S. Firm Shares, at the same purchase price per share to be
paid by the U.S. Underwriters to the Company for the U.S. Firm Shares. This
option may be exercised at any time (but not more than once) on or before the
thirtieth day following the date of the Underwriting Agreement, by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares
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as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "Additional Closing Date"); provided, however, that the Additional
Closing Date shall not be earlier than the Closing Date (as defined below) nor
earlier than the second business day after the date on which the option shall
have been exercised nor later than the tenth business day after the date on
which the option shall have been exercised. The number of Additional Shares to
be sold to each U.S. Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such U.S. Underwriter on
Schedule I to the Underwriting Agreement bears to the total number of U.S. Firm
Shares (subject, in each case, to such adjustment as the U.S. Representatives
may determine to eliminate fractional shares).
The Company hereby agrees that, without the prior written
consent of Xxxxxx Xxxxxxx & Co. Incorporated, it will not, during the period
ending 90 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other agreement that transfers, in
whole or in part, the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Offered
Securities to be sold hereunder, (B) the issuance by the Company of any shares
of Common Stock upon the exercise of an option or warrant, (C) the issuance by
the Company of any shares of Common Stock under the Company's PowerShare (tm)
Dividend Reinvestment and Stock Purchase Plan, (D) the issuance by the Company
of any Common Stock or options to purchase Common Stock under the Company's
ThriftPlus Plan, the Central and South West Corporation 1992 Long-Term
Incentive Plan
---------------------
(1) As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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or the Company's Annual Incentive Plan, or (E) the issuance by the Company of
any shares of restricted stock to any director, executive officer or other
employee of the Company or any of its subsidiaries.
Payment for the Firm Shares shall be made as set forth in the
Underwriting Agreement in immediately available Federal funds (unless the
Underwriting Agreement shall otherwise specify) at the time and place set forth
in the Underwriting Agreement upon delivery to the Managers for the respective
accounts of the several Underwriters of the Firm Shares registered in such
names and in such denominations as the Managers shall request in writing not
less than two full business days prior to the date of delivery. If the
Managers shall request that any certificates be issued in a name or names other
than that of any Underwriter agreeing to purchase the Firm Shares, such
Underwriter shall pay any transfer tax resulting from such issuance. The
Company agrees to have the Firm Shares available for inspection, checking and
packaging by the Managers at the location indicated in the Underwriting
Agreement not later than 1:00 P.M. on the business day next prior to the
Closing Date. The time and date of such payment and delivery with respect to
the Firm Shares are herein referred to as the "Closing Date".
Payment of the purchase price and delivery of the certificates
for the Additional Shares shall be made on the Additional Closing Date or on
such later date (not later than five business days following the Additional
Closing Date), as shall be agreed upon by the U.S. Representatives and the
Company, in the same manner and at the same office as the payment for the Firm
Shares. On the second business day preceding the Additional Closing Date the
U.S. Representatives shall specify the names and denominations in which
certificates for the Additional Shares shall be delivered to the U.S.
Representatives in definitive form. For the purpose of expediting the checking
of the certificates for the Additional Shares by the U.S. Representatives, the
Company agrees to make such certificates available to the U.S. Representatives
for such purpose at least one full business day preceding the Additional
Closing Date.
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3. Covenants of the Company.
The Company covenants and agrees with each of the Underwriters
that:
(a) As soon as practicable after the acceptance of a
proposal to purchase the Offered Securities, the Company will file the U.S.
Supplement and the International Supplement with the Commission pursuant to
Rule 424(b) of the Securities Act. The Company will not file at any time prior
to the Closing Date any other amendment to either of the Registration Statements
or any supplement to the Prospectus, or any other amended prospectus or any
document that upon the filing thereof would become an Incorporated Document of
which Sidley & Austin ("Underwriters' Counsel") shall not previously have been
advised and furnished with a copy or to which the Managers shall reasonably
object in writing.
(b) The Company will advise the Managers immediately, and
confirm such advice promptly in writing, of the effectiveness of any amendment
to the Registration Statements.
(c) The Company will notify promptly each of the
Underwriters in the event of the issuance by the Commission of any stop order
suspending the effectiveness of either of the Registration Statements or in the
event of the institution or notice of intended institution by the Commission of
any action or proceeding for that purpose. In the event the Commission shall
enter a stop order suspending the effectiveness of either or both of the
Registration Statements, whether before or after the Offered Securities have
been delivered to the Managers or the Underwriters and paid for as provided in
the Underwriting Agreement, the Company will make every reasonable effort to
obtain, as promptly as possible, the entry by the Commission of an order
setting aside any such stop order or otherwise reinstating the effectiveness of
either or both of the Registration Statements.
(d) The Company will deliver to Xxxxxx Xxxxxxx & Co.
Incorporated, on or before the Closing Date, one signed copy of each of the
Registration Statements as originally filed and of each amendment thereto (in
each case including all exhibits thereto, other than exhibits incorporated by
reference), and will also
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deliver to the Managers, for distribution to the Underwriters, a sufficient
number of conformed copies of each of the foregoing (but without exhibits) so
that one copy of each may be distributed to each of the Underwriters. The
Company will also send to the Managers or to the Underwriters, without expense
to them, as soon as practicable after the date hereof, and thereafter from time
to time during a period of nine months after such date, as many copies of any
preliminary prospectus and the Prospectus as the Managers may reasonably
request for the purposes contemplated by the Securities Act.
(e) The Company will endeavor, when and as requested by
the U.S. Representatives, to furnish information and otherwise cooperate in
qualifying or registering the Offered Securities for offer and sale under the
securities or "blue sky" laws of such jurisdictions as the U.S. Representatives
may designate, but the Company shall not thereby be obligated to qualify as a
foreign corporation in, or to execute or file any general consent to service of
process under the laws of, any jurisdiction. The Company will pay the
Underwriters' Counsel all reasonable fees (including counsel fees) and
expenses, including the reasonable cost of reproducing or printing any Blue Sky
Survey, incurred by them in connection with such qualification or registration,
of the Offered Securities for offer or sale, not exceeding, however, $6,000 in
the aggregate.
(f) Whether or not the transactions contemplated in the
Underwriting Agreement are consummated or the Underwriting Agreement is
terminated, to pay or cause to be paid all expenses incident to the performance
of its obligations under the Underwriting Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the Offered
Securities under the Securities Act and all other fees or expenses in
connection with the preparation and filing of the Registration Statements, any
preliminary prospectus, the Prospectus and amendments and supplements to any of
the foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and dealers, in
the quantities hereinabove specified, but excluding the fees and disbursements
of Underwriters Counsel, except as set forth in subsections (e) and (g) of
Section 3 hereof, (ii) all costs and expenses related to the transfer and
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19
delivery of the Offered Securities to the Underwriters, including any transfer
or other taxes payable thereon, (iii) all costs and expenses incident to
listing the Shares on the New York Stock Exchange and The Chicago Stock
Exchange, (iv) the cost of printing certificates representing the Offered
Securities, (v) the costs and charges of any transfer agent, registrar or
depositary and (vi) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the Offered Securities, including, without limitation, travel and lodging
expense of officers of the Company. It is understood, however, that except as
provided in this Section and Section 5, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Offered Securities by them, and
any advertising expenses connected with any offers they may make.
(g) If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of
the Company to comply with the terms or to fulfill any of the conditions of the
Underwriting Agreement, or if for any reason the Company shall be unable to
perform its obligations under the Underwriting Agreement, the Company will
reimburse the Underwriters or such Underwriters as have so terminated the
Underwriting Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of Underwriters'
counsel) reasonably incurred by such Underwriters in connection with the
Underwriting Agreement or the offering contemplated hereunder. The Company
shall not in any event be liable to any of the Underwriters for damages on
account of loss of anticipated profits.
(h) If, during the period (which in any event shall not
exceed nine months) after the first date of the public offering of the Offered
Securities that in the opinion of counsel for the Company the Prospectus is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event relating to or affecting the Company or its subsidiaries or
of which the Company shall be advised in writing by the Managers, shall occur
as a result of which it is necessary, in the opinion of counsel for the
Company, to supplement or amend the Prospectus in order to make the Prospectus
not misleading in the light of the circumstances existing at the time it is
delivered to a
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20
purchaser of Offered Securities from any of the Underwriters, the Company will
forthwith at its expense prepare and furnish to the Managers or to the
Underwriters a reasonable number of copies of a supplement or supplements or an
amendment or amendments to the Prospectus (in form satisfactory to
Underwriters' Counsel) which will supplement or amend the Prospectus so that,
as so supplemented or amended, it will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the
circumstances existing at the time the Prospectus is delivered to such a
purchaser, not misleading.
(i) The Company will make generally available to its
security holders, as soon as practicable, an earnings statement (which need not
be audited) covering a period of at least twelve months beginning not earlier
than the date of the Prospectus, which earnings statement shall satisfy the
requirements of Section 11(a) of the Securities Act.
4. Conditions of Underwriters' Obligations.
The obligations of the Underwriters to purchase and pay for
the Offered Securities shall be subject to the performance by the Company of
its obligations to be performed under the Underwriting Agreement at or prior to
the Closing Date, to the continued accuracy in all material respects of the
representations and warranties of the Company contained in the Underwriting
Agreement, and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing and in accordance with subsection (a) of Section 1 of the
Underwriting Agreement; no stop order suspending the effectiveness of either or
both of the Registration Statements shall have been issued under the Securities
Act, or proceedings therefor instituted or, to the knowledge of the Company,
threatened by the Commission, on or prior to the Closing Date.
(b) Since the respective dates as of which information is
given in each of the Registration Statements and in the Prospectus, there
shall have been no (A) material adverse change in the condition, financial
or otherwise, or in the earnings, business
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21
or operations of the Company and its subsidiaries, taken as a whole, or (B)
adverse development concerning the business or assets of the Company and its
subsidiaries, taken as a whole, which would result in a material adverse change
in the prospective financial condition or results of operations of the Company
and its subsidiaries, taken as a whole, except such changes as are set forth or
contemplated in such Registration Statements or the Prospectus (including the
financial statements and notes thereto included or incorporated by reference in
the Registration Statements).
(c) At or prior to the Closing Date the Underwriters
shall have received from Underwriters' Counsel an opinion (subject to the
reservation that they have relied upon the opinions of the several counsel for
the Operating Companies mentioned in subsection (e) and (f) of this Section 4,
as to the corporate organization and existence of the Operating Companies and
as to all other matters governed by the laws of the respective states or
jurisdictions in which such counsel for the operating companies practice),
substantially to the effect set forth in Exhibit A.
(d) At or prior to the Closing Date, the Underwriters
shall have received from Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the
Company, an opinion (subject to the same reservation as that expressed in
subsection (c) of this Section 4), substantially to the effect set forth in
Exhibit B.
(e) At or prior to the Closing Date, the Underwriters
shall have received from each of Xxxxxx & Xxxxxx L.L.P., of Dallas, Texas,
Doerner, Saunders, Xxxxxx & Xxxxxxxx, of Tulsa, Oklahoma, Wilkinson, Carmody,
Xxxxxxx & Xxxxxx, of Shreveport, Louisiana, Wagstaff, Alvis, Stubbeman,
Xxxxxxxx & Xxxxxxxx, L.L.P., of Abilene, Texas and Xxxxxxx Xxxxxx, Esq., of
Tulsa, Oklahoma, counsel, respectively for CPL, PSO, SWEPCO, WTU and Transok,
an opinion, substantially to the effect set forth in Exhibit C.
(f) At or prior to the Closing Date, the Underwriters
shall have received from each of Friday, Xxxxxxxx & Xxxxx, of Little Rock,
Arkansas, Rainey, Ross, Rice & Xxxxx, of Oklahoma City, Oklahoma, and Coghlan,
Crowson, Xxxxxxxxxxx & Xxxxxxxxx, of Longview, Texas, counsel for SWEPCO in the
States of Arkansas,
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Oklahoma and Texas, respectively, an opinion, substantially to the effect set
forth in Exhibit D.
(g) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to you, from
Xxxxxx Xxxxxxxx LLP, independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements (including, if
applicable, pro forma financial statements) and certain financial information
(including, if applicable, pro forma financial information) contained in the
Registration Statements and the Prospectus.
The form of letter shall reflect the inclusion of any
subsequently dated financial information, the incorporation by reference of any
subsequently filed Annual Report on Form 10-K or Quarterly Report on Form 10-Q
and/or the inclusion in the Prospectus of any statistical or financial
information customarily covered in such letters.
(h) The Underwriters shall have received, on each of the
date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to you, from KPMG,
Chartered Accountants, Registered Auditors, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statements and the Prospectus.
Subsequent to the respective dates as of which information is
given in each of the Registration Statements and the Prospectus, there shall
not have been any change or decrease specified in the letters required by
subsections (g) and (h) of this Section 4 which is, in the judgment of the
Managers, so material and adverse as to make it impractical or inadvisable to
proceed with the offering or the delivery of the Offered Securities as
contemplated by the Registration Statements and the Prospectus.
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(i) At the Closing Date the Underwriters shall have
received a certificate, dated as of the Closing Date, signed by the President
or a Vice President (including any Executive Vice President or Senior Vice
President) and the Treasurer or the Secretary of the Company, to the effect
that (i) to the best of the knowledge of the signers, no stop order suspending
the effectiveness of either or both of the Registration Statements has been
issued under the Securities Act and no proceedings therefor have been
instituted or threatened by the Commission, (ii) the order of the Commission
referred to in subsection (c) of Section 1 of the Underwriting Agreement is, to
the best of the knowledge of the signers, in full force and effect, (iii) the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date in all material respects, (iv) the
Company has complied with all of the agreements and satisfied all of the
conditions on its part to be performed or satisfied hereunder on or before the
Closing Date and (v) to the effect set forth in (b) above.
(j) The "lock-up" agreements, each substantially in the
form of Exhibit E hereto, between the Representatives and certain officers and
directors of the Company relating to sales and certain other dispositions of
shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing Date.
In case any of the conditions specified in this Section 4
shall not have been fulfilled, the Underwriting Agreement may be terminated by
the Managers upon delivering written notice thereof to the Company. Any such
termination shall be without liability of any party to any other party except
as otherwise provided in subsection (f) of Section 3 of the Underwriting
Agreement.
The several obligations of the U.S. Underwriters to purchase
Additional Shares under the Underwriting Agreement are subject to the delivery
by the Company on the Additional Closing Date of such documents as the U.S.
Representatives may reasonably request with respect to the good standing of the
Company, the due authorization and issuance of the Additional Shares, opinions
of counsel, accountants letters, officers certificates and such other items as
the U.S. Representatives shall reasonably specify.
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5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), from and against any and
all losses, claims, damages or liabilities, joint or several, to which such
Underwriter or such controlling person may become subject under the Securities
Act, the Exchange Act or the common law or otherwise, and to reimburse each
such Underwriter or such controlling person for any reasonable legal or other
expenses (including, to the extent hereinafter provided, reasonable counsel
fees) incurred by it or them in connection with defending against any such
losses, claims, damages or liabilities, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in either of
the Registration Statements or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading; provided, however,
that the indemnity agreement contained in this subsection (a) shall not apply
to any such losses, claims, damages or liabilities arising out of or based upon
(i) any such untrue statement or alleged untrue statement, or any such omission
or alleged omission, if such statement or omission was made in reliance upon
and in conformity with information furnished in writing to the Company by any
of the Underwriters for use in either of the Registration Statements or the
Prospectus or any amendment or supplement to either thereof or (ii) the failure
of any Underwriter to deliver (either directly or through the Managers) a copy
of the Prospectus (excluding the Incorporated Documents), or of the Prospectus
as amended or supplemented after it shall have been amended or supplemented by
the Company (excluding the Incorporated Documents), to any person to whom a
copy of any preliminary prospectus shall have been delivered by or on behalf of
such Underwriter and to whom any Offered Securities shall have been sold by
such Underwriter, as such delivery may be required by the Securities Act and
the rules and regulations of the Commission thereunder.
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(b) Each of the Underwriters, severally and not jointly,
agrees to indemnify and hold harmless the Company, each of its officers who
signs the Registration Statements, each of its directors, each person who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, each other Underwriter and each person, if any,
who so controls such other Underwriter, from and against any and all losses,
claims, damages or liabilities, joint or several, to which any one or more of
them may become subject under the Securities Act, the Exchange Act or the
common law or otherwise, and to reimburse each of them for any reasonable legal
or other expenses (including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with defending against any such
losses, claims, damages or liabilities of the character above specified arising
out of or based upon (i) any untrue statement or alleged untrue statement of a
material fact contained in either of the Registration Statements or the
Prospectus or any amendment to either of the Registration Statements or
amendment or supplement to the Prospectus or upon any omission or alleged
omission to state in any thereof a material fact required to be stated therein
or necessary to make the statements therein not misleading if such statement or
omission was made in reliance upon and in conformity with information furnished
in writing to the Company by such Underwriter for use in either of the
Registration Statements or the Prospectus or any amendment or supplement to
either thereof or (ii) the failure of such Underwriter to deliver (either
directly or through the Managers) a copy of the Prospectus (excluding the
Incorporated Documents), or of the Prospectus as amended or supplemented after
it shall have been amended or supplemented by the Company (excluding the
Incorporated Documents), to any person to whom a copy of any preliminary
prospectus shall have been delivered by or on behalf of such Underwriter and to
whom any Offered Securities shall have sold by such Underwriter, as such
delivery may be required by the Securities Act and the rules and regulations of
the Commission thereunder.
(c) Promptly after receipt by a party indemnified under
this Section 5 (an "indemnified party") of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be
made against a party granting an indemnity under this Section 5 (the
"indemnifying party"), notify the indemnifying party in writing of the
commencement
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thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under this Section 5. In case any such action is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein, and to
the extent that it may elect by written notice delivered to the indemnified
party promptly after receiving the aforesaid notice from such indemnified
party, to assume the defense thereof (thereby conceding that the action in
question is subject to indemnification by the indemnifying party), with counsel
reasonably satisfactory to such indemnified party, and shall pay the fees and
disbursements of such counsel related to such action; provided, however, that
if the defendants in any such action include both the indemnified party and the
indemnifying party and representation of both parties would be inappropriate
due to actual or potential differing interests between them, the indemnified
party or parties shall have the right to select separate counsel. Upon receipt
of notice from the indemnifying party to such indemnified party of its election
so to assume the defense of such action and approval by the indemnified party
of counsel, the indemnifying party will not be liable to such indemnified party
under this Section 5 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel), approved by the Managers
in the case of subsection (a), representing the indemnified parties under
subsection (a) who are parties to such action and that all such fees and
expenses shall be reimbursed as they are incurred) or (ii) the indemnifying
party has authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that such liability shall be only
in respect of the counsel referred to in clause (i) or (ii). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party
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shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in this Section 5
shall be unenforceable under applicable law by an indemnified party, the
Company agrees to contribute to such indemnified party with respect to any and
all losses, claims, damages and liabilities for which such indemnification
provided for in this Section 5 shall be unenforceable, in such proportion as
shall be appropriate to reflect the relative fault of the Company on the one
hand and the indemnified party on the other hand in connection with the
statements or omissions which have resulted in such losses, claims, damages and
liabilities, as well as any other relevant equitable considerations; provided,
however, that no indemnified party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from the Company if the Company is not guilty of such
fraudulent misrepresentation. Relative fault shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the indemnified party and
each such party's relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The
Company and each of the Underwriters agree that it would not be just and
equitable if contribution pursuant to this subparagraph were to be determined
solely by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to above.
(e) The amount paid or payable by an indemnified party as
a result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such
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28
indemnified party in connection with investigating or defending any such action
or claim.
(f) The indemnity and contribution agreements contained
in this Section 5 and the representations and warranties of the Company in the
Underwriting Agreement shall remain operative and in full force regardless of
(i) any termination of the Underwriting Agreement, (ii) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter or
by or on behalf of the Company, its directors or officers or any person
controlling the Company and (iii) acceptance of and payment for any of the
Offered Securities.
6. Termination.
(a) If the Offered Securities are being purchased for the
purpose of resale, the Underwriting Agreement may be terminated, at any time
prior to the Closing Date, by the Managers, if (a) there shall have occurred
any general suspension or material limitation on trading in securities on the
New York Stock Exchange or by the Commission or by any federal or state agency
or by the decision of any court any limitation on prices for such trading or
any restrictions on the distribution of securities, (b) trading in any
securities of the Company shall have been suspended by the Commission or a
national securities exchange, (c) a general banking moratorium on commercial
banking activities in New York shall have been declared either by federal or
New York State authorities or (d) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
the judgment of the Managers, impracticable to market the Offered Securities.
(b) Any termination of the underwriting Agreement
pursuant to this Section 6 shall be without liability of any party to any other
party except as otherwise provided in subsection (f) of Section 3.
7. Default by an Underwriter.
If any one or more Underwriters shall fail to purchase and pay
for any of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters hereunder and such failure to
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purchase shall constitute a default in the performance of its or their
obligations under the Underwriting Agreement, the remaining Underwriters shall
be obligated severally to take up and pay for (in the respective proportions
which the amount of Firm Shares set forth opposite their names in Schedule I or
Schedule II to the Underwriting Agreement bears to the aggregate amount of Firm
Shares set forth opposite the names of all the remaining Underwriters) the Firm
Shares which the defaulting Underwriter or Underwriters agreed but failed to
purchase, provided that in no event shall the number of Offered Securities that
any Underwriter has agreed to purchase be increased pursuant to this Section 7
by an amount in excess of 11% of such number of Offered Securities without the
written consent of such Underwriter. Notwithstanding the foregoing, in the
event that the aggregate amount of Firm Shares which the defaulting Underwriter
or Underwriters agreed but failed to purchase (less such aggregate amount of
Firm Shares as are purchased by substituted underwriters selected by the
Managers with the approval of the Company or selected by the Company with the
approval of the Managers) shall exceed 10% of the aggregate amount of Firm
Shares set forth in such Schedule I, the remaining Underwriters shall have the
right to purchase all, but shall not be under any obligation to purchase any,
of the Firm Shares, and if such nondefaulting Underwriters do not purchase all
the Firm Shares, the Underwriting Agreement will terminate without liability to
any nondefaulting Underwriter or the Company (except as otherwise provided in
subsection (f) of Section 3). In the event of a default by an Underwriter as
set forth in this Section 7, the Closing Date shall be postponed for such
period, not exceeding seven calendar days, as the Company and the Managers
shall determine in order that the required changes in the Registration
Statements and the Prospectus or in any other documents or arrangements may be
effected. If, on the Additional Closing Date, any U.S. Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than 10% of the aggregate number of Additional Shares to be purchased,
the non-defaulting U.S. Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase Additional Shares or (ii) purchase not
less than the number of Additional Shares that such non-defaulting U.S.
Underwriters would have been obligated to purchase in the absence of such
default. Nothing contained in the Underwriting Agreement shall relieve any
defaulting
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30
Underwriter of its liability, if any, to the Company and any nondefaulting
Underwriter for damages occasioned by its default thereunder.
8. Notices.
All communications under the Underwriting Agreement will be
effective only on receipt, and, if sent to the Managers, will be mailed,
delivered, telegraphed or telecopied and confirmed to them, at the address, or
telephoned to them at the number, specified in the Underwriting Agreement and
to Sidley & Austin, Xxx Xxxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000,
attention: Xxxxxx X. Xxxx, Xx.; or, if sent to the Company, will be mailed,
delivered, telegraphed or telecopied and confirmed to it at Central and South
West Corporation, 0000 Xxxxxxx Xxxxxxx Xxxxxxx, Xxxxxx, Xxxxx 00000, attention
of the Treasurer and to Milbank, Tweed, Xxxxxx & XxXxxx, 0 Xxxxx Xxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention Xxxxxx X. Xxxxxxxx, Esq.
9. Successors.
The Underwriting Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 5 of the
Underwriting Agreement, and no other person will have any right or obligation
hereunder and no other person (including a purchaser, as a purchaser, from any
Underwriter of any of the Offered Securities) shall acquire or have any rights
under or by virtue of the Underwriting Agreement.
10. Governing Law.
The Underwriting Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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Exhibit A
Form of Opinion to be provided by Sidley & Xxxxxx
Xxxxxx Xxxxxxx & Co. Xxxxxx Xxxxxxx & Co.
Incorporated International Limited
CS First Boston Corporation CS First Boston Limited
Xxxx Xxxxxx Xxxxxxxx Inc. Xxxx Xxxxxx International Ltd.
Xxxxxxx, Sachs & Co. Xxxxxxx Xxxxx International
Xxxxx Xxxxxx Inc. Xxxxx Xxxxxx Inc.
As Representatives of the As Representatives of the
Several U.S. Underwriters Several International
c/o Morgan Xxxxxxx & Co. Underwriters
Incorporated c/o Morgan Xxxxxxx & Co.
0000 Xxxxxxxx Xxxxxxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000 0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Central and South West Corporation
13,500,000 Shares of Common Stock,
$3.50 par value
Ladies and Gentlemen:
We address this opinion to you individually and as
Representatives of the Underwriters (the "Underwriters") named in Schedules I
and II to the Underwriting Agreement dated February 21, 1996 (the "Underwriting
Agreement") between you, as such Representatives, and Central and South West
Corporation, a Delaware corporation (the "Company"), with respect to the offer
and sale pursuant thereto of 13,500,000 shares (the "Offered Securities") of
the Company's Common Stock, $3.50 par value (the "Common Stock"). Capitalized
terms not defined herein have the meanings specified in the Underwriting
Agreement.
As counsel for the Underwriters, we have, among other things,
participated with officers and representatives of the
32
Xxxxxx Xxxxxxx & Co. Incorporated
February 27, 1996
Page 2
Company, including its counsel and independent public accountants, and
representatives of the Underwriters in the preparation of (i) the Company's
Registration Statement on Form S-3 (Registration No. 333-00343) filed on
January 22, 1996 with the Securities and Exchange Commission (the "SEC") under
the Securities Act of 1933, as amended (the "Securities Act"), which
registration statement became effective on January 31, 1996 ("Registration
Statement No. 333-00343"); (ii) the Company's Registration Statement on Form
S-3 (Registration No. 333-01115) filed on Febrary 21, 1996 with the Commission
pursuant to Rule 424(b) of the Securities Act, which registration statement
became effective upon filing with the Commission ("Registration Statement No.
333-01115) (such registration statements, including all materials incorporated
by reference therein pursuant to Item 12 of Form S-3 under the Securities Act
at the date hereof (the "Incorporated Documents"), being hereinafter
collectively called the "Registration Statements"); and (iii) the Company's
U.S. Prospectus Supplement and International Prospectus Supplement, each dated
February 21, 1996 and filed with the SEC on February 22, 1996 (collectively,
the "Prospectus Supplement"), relating to the Prospectus dated February 21, 1996
included in the Registration Statements (collectively, including the
Incorporated Documents and the Prospectus Supplement, being hereinafter called
the "Final Prospectus"), which is the form of final prospectus relating to the
Offered Securities first filed with the SEC pursuant to Rule 424(b) under the
Securities Act.
Pursuant to the requirement of Section 4(c) of the
Underwriting Agreement, this will advise you that in the opinion of the
undersigned:
1. The certificates for the Offered Securities are in due and
proper form; and the Offered Securities, when certificates therefor
have been duly executed, countersigned and registered and delivered to
and paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement, will constitute shares of Common Stock which
have been duly authorized and validly issued, are fully paid and
non-assessable and have not been issued in violation of the preemptive
rights of any stockholder of the Company.
2. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
3. The Registration Statements have become effective under the
Securities Act; and, to our knowledge, no stop
33
Xxxxxx Xxxxxxx & Co. Incorporated
February 27, 1996
Page 3
order suspending the effectiveness of either of the Registration
Statements has been issued and no proceeding for such purpose has
been instituted or threatened by the SEC.
4. The order of the SEC, dated September 27, 1995, in File
No. 70-8423, under the Public Utility Holding Company Act of 1935, as
amended, relating to the offer and sale of the Offered Securities by
the Company (being the order of the SEC referred to in subsection (c)
of Section 1 of the Underwriting Agreement) has been entered and, to
our knowledge, is still in full force and effect. Except for such
order and the order of the SEC with respect to the effectiveness of
the Registration Statement No. 333-00343 referred to in paragraph 3
above, no other approval, authorization, consent, certificate or order
of any commission or regulatory authority of the United States of
America is necessary with respect to the issuance and sale of the
Offered Securities by the Company as contemplated by the Underwriting
Agreement and the Final Prospectus.
5. Each of the Registration Statements, at the time that it
became effective, and the Final Prospectus, as of the date of the
Prospectus Supplement (in each case, other than the Incorporated
Documents and other than financial statements, financial data,
statistical data and supporting schedules included or incorporated by
reference therein, as to which we express no opinion), complied as to
form, in all material respects, to the requirements of the Securities
Act and to the rules and regulations of the SEC thereunder.
6. The Common Stock (including the Offered Securities)
conforms in all material respects to the description thereof contained
in the Registration Statements.
In the course of the preparation of the Registration
Statements and the Final Prospectus, we have considered the information set
forth therein in light of the matters required to be set forth therein and, as
noted above, we have participated in conferences with your representatives and
officers and representatives of the Company, including its counsel and
34
Xxxxxx Xxxxxxx & Co. Incorporated
February 27, 1996
Page 4
independent public accountants, during the course of which the contents of the
Registration Statements and the Final Prospectus and related matters were
discussed. Except as otherwise expressly stated herein, we have not
independently checked the accuracy or completeness of, or otherwise verified,
and accordingly are not passing upon, and do not assume responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statements or the Final Prospectus; and we have relied as to
materiality, to a large extent, upon the judgment of officers and
representatives of the Company. However, as a result of such consideration and
participation, nothing has come to our attention that causes us to believe that
either of the Registration Statements (other than the financial statements,
financial data, statistical data and supporting schedules included or
incorporated by reference therein, as to which we express no belief), at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Final Prospectus (other
than the financial statements, financial data, statistical data and supporting
schedules included or incorporated by reference therein, as to which we express
no belief), as of the date hereof, includes an untrue statement of a material
fact or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
For the purpose of rendering the foregoing opinions, we have
relied, as to various questions of fact material to such opinions, upon the
representations made in the Underwriting Agreement and upon certificates of
officers of the Company. We also have examined originals, or copies of
originals certified to our satisfaction, of such agreements, documents,
certificates and other statements of government officials and other
instruments, have examined such questions of law and have satisfied ourselves
as to such matters of fact as we have considered relevant and necessary as a
basis for this opinion. We have assumed the authenticity of all documents
submitted to us as originals, the genuineness of all signatures, the legal
capacity of all natural persons and the conformity with the original documents
of any copies thereof submitted to us for our examination.
35
Xxxxxx Xxxxxxx & Co. Incorporated
February 27, 1996
Page 5
This opinion is limited to the General Corporation Law of the
State of Delaware, the federal laws of the United States of America and the
laws of the State of New York.
This opinion is being delivered solely for the benefit of the
persons to whom it is addressed; accordingly, it may not be quoted, filed with
any governmental authority or other regulatory agency or otherwise circulated
or utilized for any other purpose without prior written consent.
Very truly yours,
36
EXHIBIT B
Form of Opinion to be provided by Milbank, Tweed, Xxxxxx & XxXxxx
Xxxxxx Xxxxxxx & Co. Incorporated
CS First Boston Corporation
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
As Representatives of the several U.S.
Underwriters named in the Underwriting Agreement,
(the "Underwriting Agreement") dated February 21,
1996, with Central and South West Corporation
Xxxxxx Xxxxxxx & Co. International Limited
CS First Boston Limited
Xxxx Xxxxxx International Ltd.
Xxxxxxx Xxxxx International
Xxxxx Xxxxxx Inc.
As Representatives of the several
International Underwriters named
in the Underwriting Agreement
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Central and South West Corporation
13,500,000 Shares of Common Stock,
$3.50 par value
Ladies and Gentlemen:
We have acted as special counsel for Central and South West
Corporation, a Delaware corporation (the "Company"), in connection with the
purchase by you, severally, from the Company, pursuant to the above-mentioned
Underwriting Agreement (the "Underwriting Agreement"), of 13,500,000 shares
of common stock, par value $3.50 per share (the "Offered Securities"), of the
Company.
We have examined originals, or copies certified to our
satisfaction, of all such corporate records of the Company, indentures,
agreements and other instruments, certificates of
37
public officials, certificates of officers and representatives of the Company
and other documents as we have deemed it necessary to require as a basis for
the opinions hereinafter expressed. In our examination we have assumed the
genuineness of all signatures and the authenticity of all documents submitted
to us as originals and the conformity with the originals of all documents
submitted to us as copies and the authenticity of the originals of such latter
documents. As to various questions of fact material to such opinions we have,
when relevant facts were not independently established, relied upon
certifications by officers of the Company and other appropriate persons and
statements contained in the Registration Statements hereinafter mentioned.
In addition, we attended the closing held today at our offices
during the course of which the Company delivered the Offered Securities to your
representative at the office of The Depository Trust Company, 00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx, for your several accounts, in accordance with the
Underwriting Agreement, against payment therefor.
Based upon the foregoing, and having regard to legal
considerations which we deem relevant, we are of the opinion that:
1. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its own
property and conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of its property requires such qualification, except to the
extent such failure to be so qualified or be in good standing would
not have a material
-2-
38
adverse effect on the Company and its subsidiaries, taken as a whole.
2. The authorized capital stock of the Company conforms in
all material respects as to legal matters to the description thereof
contained in the Prospectus.
3. The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
4. The Offered Securities have been duly and validly
authorized by all necessary corporate proceedings, and, when issued
and delivered in accordance with the terms of the Underwriting
Agreement, the Offered Securities will be validly issued, fully paid
and non-assessable and have the rights set forth in the Company's
Second Restated Certificate of Incorporation (the "Charter").
5. The Offered Securities conform in all material respects to
the description thereof contained in the Prospectus (the "Prospectus")
dated February 21, 1996, as amended and supplemented by the Prospectus
Supplement dated February 21, 1996, relating to the Common Stock,
including all documents incorporated by reference therein pursuant to
the requirements of Form S-3 under the Securities Act of 1933, as
amended (the "Securities Act").
6. The issuance of the Offered Securities pursuant to the
Underwriting Agreement is not subject to preemptive or other similar
rights arising under the General Corporation Law of the State of
Delaware or under the Charter or Bylaws of the Company.
7. The execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting
Agreement will not result in a breach of any provision of the Charter
or Bylaws of the Company or, to our knowledge, any agreement or
instrument to which the Company or any of Central Power and Light
Company, Public Service Company of Oklahoma, Southwestern Electric
Power Company, West Texas Utilities Company and Transok, Inc.
(collectively, the "Operating Companies") is a party that is material
to the Company and its subsidiaries, taken as a whole, or, to our
knowledge, result in a violation of any provision of applicable law
(provided that no opinion is expressed with respect to the
indemnification provisions in the Underwriting Agreement insofar as
public policy considerations may affect the performance thereof) or
any judgment, decree or order applicable to the Company of any Federal
governmental body, agency or court having jurisdiction over the
Company or the Operating Companies.
-3-
39
8. The order of the Securities and Exchange Commission (the
"Commission"), dated September 27, 1995, in File No. 70-8423, under
the Public Utility Holding Company Act of 1935, as amended, relating
to the offer and sale of the Offered Securities (being the order of
the Commission referred to in subsection (c) of Section 1 of the
Underwriting Agreement) has been duly entered and, to the knowledge of
such counsel, is in full force and effect. No further approval,
authorization, consent, certificate or order of any Federal
governmental body or regulatory authority is necessary in connection
with the issuance and sale of the Offered Securities by the Company as
contemplated by the Underwriting Agreement and the Prospectus except
the registration under the Securities Act.
9. The registration statement on Form S-3 (File No. 333-00343)
and the registration statement on Form S-3 (File No. 333-01115)
(including all documents incorporated by reference therein pursuant to
the requirements of Form S-3 under the Securities Act collectively,
the "Registration Statements") with respect to the Offered Securities
filed with the Commission pursuant to the Securities Act have become
effective and, to our knowledge, no stop order suspending the
effectiveness of either or both of the Registration Statements, has
been issued and no proceedings for such purpose have been instituted
or are pending under the Securities Act. Any required filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act has been
made within the time period required by Rule 424(b). The Prospectus
including all documents incorporated by reference pursuant to the
requirements of Form S-3 under the Securities Act, constituting a part
thereof, may lawfully be used for the purposes specified in the
Securities Act in connection with the offer and sale of the Offered
Securities in the manner therein specified.
10. Each of the Registration Statements and the Prospectus
(other than financial statements and related schedules and other
financial and statistical data included or incorporated by reference
therein or omitted therefrom, as to which we express no opinion) as of
their respective effective or issue dates appear on their face to be
appropriately responsive in all material respects relevant to the
offering of the Offered Securities to the requirements of the
Securities Act (or, where appropriate, the Securities Exchange Act of
1934, as amended (the "Exchange Act")) and to the applicable rules and
regulations of the Commission under each such statute.
11. All outstanding shares of common stock of the Operating
Companies are owned directly by the Company, free and clear of any
liens and encumbrances.
12. To our knowledge, there are no legal or governmental
proceedings pending or threatened to which the Company or any
Operating Company is a party which are required to be disclosed in the
Prospectus, other than those
-4-
40
disclosed therein; and, to our knowledge, there are no contracts or
documents that are required to be described in either of the
Registration Statements or the Prospectus or to be filed as exhibits
to the Registration Statement that are not so described therein or
filed therewith.
13. The statements under the caption "Description of Common
Stock" in the Prospectus, in so far as such statements constitute
summaries of legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to
such legal matters, documents and proceedings, and fairly summarize
the matters referred to therein in all material respects.
14. The statements under the caption "Certain United States
Federal Income Tax Consequences For Non-United States Holders of
Common Stock" in the Prospectus, in so far as the statements address
matters of law or legal conclusions, are correct in all material
respects.
The Registration Statements were filed on Form S-3 under the
Securities Act and, accordingly, the Prospectus does not necessarily contain a
current description of the Company's business and affairs since Form S-3
provides for the incorporation by reference of certain documents filed with the
Commission which contain descriptions as of various dates. We participated in
the preparation of the Registration Statements and Prospectus and we have
reviewed certain documents filed by the Company under the Exchange Act, which
are incorporated by reference in the Prospectus (such documents listed in the
Prospectus as being incorporated by reference are herein called the
"Incorporated Documents"). Although we have not independently verified the
accuracy, completeness or fairness of the statements contained therein or in
the Incorporated Documents, none of the foregoing disclosed to us any
information which gave us reason to believe that the Registration Statements and
the Incorporated Documents, considered as a whole on the effective date of each
of the Registration
-5-
41
Statements, contained or contain any untrue statement of a material fact or
omitted or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that the
Prospectus and the Incorporated Documents, considered as a whole on the date
hereof, contained or contain any untrue statement of a material fact or omitted
or omit to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading. Except as set forth in
paragraphs (x), (xii), (xiii) and (xiv) above, we express no opinion as to any
document filed by the Company under the Exchange Act, whether prior or
subsequent to such effective date, except to the extent that such documents are
Incorporated Documents read together with the Registration Statements or the
Prospectus and considered as a whole, nor do we express any opinion as to the
operating statistics, financial statements or other financial data included in
or omitted from, or incorporated by reference in, the Registration Statements,
the Prospectus or the Incorporated Documents.
In rendering the opinions hereinabove expressed, we have
relied, with your permission, upon the opinions of even date hereof, delivered
to you concurrently herewith, of Messrs. Xxxxxx & Xxxxxx, L.L.P., Doerner,
Saunders, Xxxxxx & Anderson, Wilkinson, Xxxxxxx, Xxxxxxx & Hussey, Wagstaff,
Alvis, Stubbeman, Xxxxxxxx & Xxxxxxxx, L.L.P. and Xxxxxxx Xxxxxx, Esq., to be
delivered pursuant to Section 4(e) of the Underwriting Agreement, and the
opinions of Friday, Xxxxxxxx & Clark, Rainey, Xxxx,
-6-
42
Rice & Xxxxx, and Coghlan, Crowson, Xxxxxxxxxxx & Xxxxxxxxx, to be delivered
pursuant to Section 4(f) of the Underwriting Agreement, and as to such
opinions, the opinions hereinabove expressed are subject to all qualifications,
limitations, assumptions and reliances, and other considerations, therein set
forth.
We do not express any opinion as to matters governed by any
laws other than the laws of the State of New York, the corporate law of the
State of Delaware, the Federal laws of the United States of America and, to the
extent the opinions referred to in the preceding paragraph cover matters
governed by the laws of the States of Texas, Oklahoma, Louisiana and Arkansas
and solely in reliance on said opinions of said counsels for the Company, the
laws of the States of Texas, Oklahoma, Louisiana and Arkansas.
Very truly yours,
-7-
43
EXHIBIT C
Opinions of Xxxxxx & Xxxxxx L.L.P.,
Doerner, Saunders, Xxxxxx & Anderson,
Wilkinson, Xxxxxxx, Xxxxxxx & Hussey,
Wagstaff, Alvis, Stubbeman, Xxxxxxxx & Xxxxxxxx, L.L.P., and Xxxxxxx Xxxxxx,
Esq.
The opinions of Xxxxxx & Xxxxxx L.L.P., Doerner, Saunders,
Xxxxxx & Anderson, Wilkinson, Xxxxxxx, Xxxxxxx & Hussey, Wagstaff, Alvis,
Stubbeman, Xxxxxxxx & Xxxxxxxx, L.L.P., and Xxxxxxx Xxxxxx, Esq., counsel and
General Counsel, respectively, for Central Power and Light Company, Public
Service Company of Oklahoma, Southwestern Electric Power Company, West Texas
Utilities Company and Transok, Inc. (each, a "Subsidiary), to be delivered
pursuant to Section 4(e) shall, with respect to the respective Subsidiary, be
substantially to the effect that:
(i) the Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the state
in which it is incorporated; the Subsidiary has the corporate power and
authority to own its property and conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Subsidiary;
(ii) the Subsidiary has the legal right to operate as a
public utility (or, in the case of Transok, Inc., as an intrastate natural gas
transmission pipeline) in the states in which it operates, respectively;
(iii) except as may be set forth in the Prospectus, to the
knowledge of such counsel, there are no legal or governmental proceedings
pending or threatened to which the Subsidiary is a party or its property is the
subject and which might reasonably be expected to materially and adversely
affect the condition (financial and otherwise), results of operations or
properties of the Subsidiary;
(iv) no approval, authorization, consent, certificate or
order of any state governmental body or regulatory authority is necessary in
connection with the issuance and sale of the Offered Securities by the Company
as contemplated by the Underwriting Agreement and the Prospectus except such as
may be required by applicable state securities or Blue Sky laws in connection
with the offer and sale of the Offered Securities; and
(v) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement
will not result in a breach of any
44
provision of the charter or by-laws of the Subsidiary or, to the knowledge of
such counsel, any agreement or instrument to which the Subsidiary is a party
that is material to the Subsidiary, or, to the knowledge of such counsel,
result in a violation of any provision of applicable law (provided that no
opinion need be expressed with respect to the indemnification provision in the
Underwriting Agreement insofar as public policy considerations may affect the
performance thereof) or any judgment, decree or order applicable to the
Subsidiary of any governmental body, agency or court having jurisdiction over
the Subsidiary.
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45
EXHIBIT D
Opinions of Friday, Xxxxxxxx & Clark,
Rainey, Xxxx, Rice & Xxxxx, and
Coghlan, Crowson, Xxxxxxxxxxx & Xxxxxxxxx
The opinions of Friday, Xxxxxxxx & Clark, Rainey, Xxxx, Xxxx &
Xxxxx, and Coghlan, Crowson, Xxxxxxxxxxx & Xxxxxxxxx, counsel for Southwestern
Electric Power Company ("SWEPCO") in the States of Arkansas, Oklahoma and
Texas, respectively, to be delivered pursuant to Section 4(f) shall be
substantially to the effect that:
(i) SWEPCO has the legal right to operate as a public utility in
the states in which it operates;
(ii) except as may be set forth in the Prospectus, to the
knowledge of such counsel, there are no legal proceedings pending or threatened
to which SWEPCO is a party or its property is the subject and which might
reasonably be expected to materially and adversely affect the condition
(financial and otherwise), results of operations or properties of SWEPCO;
(iii) no approval, authorization, consent, certificate or order of
any governmental body or regulatory authority of [list respective state] is
necessary in connection with the issuance and sale of the Offered Securities by
the Company as contemplated by the Underwriting Agreement and the Prospectus
except such as may be required by applicable state securities or Blue Sky laws
in connection with the offer and sale of the Offered Securities; and
(iv) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, the Underwriting Agreement
will not result in a breach of any provision of the charter or by-laws of
SWEPCO or, to the knowledge of such counsel, any agreement or instrument to
which SWEPCO is a party that is material to SWEPCO, or, to the knowledge of
such counsel, result in a violation of any provision of applicable law
(provided that no opinion need be expressed with respect to the indemnification
provision in the Underwriting Agreement insofar as public policy considerations
may affect the performance thereof) or any judgment, decree or order applicable
to SWEPCO of any governmental body, agency or court having jurisdiction over
SWEPCO.
46
Exhibit E
Form of Lock-up Agreement
_______________, 1996
Xxxxxx Xxxxxxx & Co. Incorporated
CS First Boston Corporation
Xxxx Xxxxxx Xxxxxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxx Xxxxxx Inc.
c/x Xxxxxx Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The undersigned understands that you, as Managers of the
several Underwriters, propose to enter into an Underwriting Agreement with
Central and South West Corporation, a Delaware corporation (the "Company")
providing for the public offering (the "Public Offering") by the several
Underwriters, including yourselves, of 13,500,000 shares (the "Shares") of the
Common Stock, par value $3.50 per share of the Company (the "Common Stock").
In consideration of the Underwriters' agreement to purchase
and make the Public Offering of the Shares, and for other good and valuable
consideration receipt of which is hereby acknowledged, the undersigned hereby
agrees that, without the prior written consent of Xxxxxx Xxxxxxx & Co.
Incorporated on behalf of the Underwriters, which consent will not be
unreasonably withheld, it will not, during the period ending 90 days after the
date of the Prospectus (as defined in the Underwriting Agreement), (1) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock (whether such shares or any such securities are
now owned by the undersigned or are hereafter acquired), or (2) enter into any
swap or other agreement that transfers, in whole or in
47
part, any of the economic consequences of ownership of the Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Common Stock or such other securities, in cash or
otherwise. Notwithstanding the preceding sentence, the undersigned may make
bona fide gifts of Common Stock, provided that, any donee receiving such a gift
agrees to be bound by the terms of this agreement. In addition, the
undersigned agrees that, without the prior written consent of Xxxxxx Xxxxxxx &
Co. Incorporated on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for
Common Stock.
Very truly yours,
----------------------------------------
(Name)
----------------------------------------
(Address)
Accepted as of the date
first set forth above:
XXXXXX XXXXXXX & CO. INCORPORATED,
on behalf of the Managers
By:
-------------------------------
